Legal Question in Criminal Law in California

Re: molesting

Yes. Someone can be prosecuted for molestation, no matter what the mental capacity. If a defense is raised as to lack of capacity, there will be a series of hearings as to whether or not, in the opinions of professionals, this person had the capacity to commit the crime, and that factor will be taken into account in the case.

Re:charging mentally retarded adults with molestation

Unfortunately (or fortunately, depending on your perspective), the criminal law does not distinguish developmentally disabled persons as a class entitled to special treatment. If a developmentally disabled (DD) person should commit any crime, the prosecutor will exercise his discretion to decide what, if any, crime should be charged against the suspect. The fact of the mental disability will be one of many factors used to make that charging decision. Other factors will be the gravity of the crime (molestation being a very serious one) and the amount of legally admissible proof against a suspect. Several other such factors should be considered.

The level of disability is important to know in determining what is likely to happen in terms of charging. If, for example, the perpetrator is so disabled as to be wholly incompetent to understand that he is being charged, he will not be made to stand trial. If he was unable to understand the difference between right and wrong at the time of the offense, then he may be legally not guilty under another related theory.

The practical answer to the question is that whether someone is charged for such a crime is largely dependent on how severe his disability is. And along that spectrum, there would be various levels of punishment associated with that crime if convicted. The fact that one is DD will, at least, be a factor in mitigation for the judge to consider at the time of sentencing. If one is not severely disabled, it is altogether possible that he will receive all of the same punishment as any other person similarly situated. The fact is, inthsi country, we have EXECUTED developmentally disabled persons for crimes they've been convicted of. So much is dependent upon the level of functionality of the disabled person.

If you are a victim of such a crime, you should proceed as in any other case: Notify the authoirites. Contact the prosecutor. Voice your opinion loud and clear.

Good luck.

Kindest regards,

JACQUELINE GOODMAN RUBIO

Attorney at Law